DeFranca, H. v. Albino Concrete ( 2016 )

J-A15022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HILDO F. DEFRANCA AND IN THE SUPERIOR COURT OF
MARIA DEFRANCA PENNSYLVANIA
Appellee
v.
ALBINO CONCRETE CONSTRUCTION CO.,
INC. D/B/A AND A/K/A JOAO ALBINO
CONSTRUCTION AND D/B/A AND A/K/A
JVL CONCRETE CO., INC.
JOAO ALBINO CONSTRUCTION AND JVL
CONCRETE CO., INC. AND TRANS-FLEET
CONCRETE, INC. AND SILVA CONCRETE,
INC.
APPEAL OF: TRANS-FLEET CONCRETE,
INC.
No. 1868 EDA 2014
Appeal from the Judgment Entered June 17, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): March Term, 2012, No. 2487
BEFORE: BOWES, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JANUARY 06, 2016
Appellant, Trans-Fleet Concrete, Inc. (Trans-Fleet), appeals from the
$2,313,590.62 judgment entered on June 17, 2014 in favor of Appellees,
Hildo F. DeFranca and Maria DeFranca, following a jury trial. After careful
review, we affirm.
The trial court provided the following summary of the facts and
procedural history of this case.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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This negligence action arises out of a
workplace accident which occurred on March 22,
2010. [Appellee], Hildo F. DeFranca, was working
for Girafa Construction which was contracted by
Albino Concrete Construction Co. Inc. ([h]ereinafter
“Albino”) to build foundations and footings at new
homes. On March 22, 2010, [Mr. DeFranca] was
standing on top of a nine (9) foot wall holding the
hose to pour cement. The hose from the concrete
pump trunk clogged three times that day. On the
third time, the concrete pump truck operator
increased the pressure on the pump to unclog it.
However, he did not give a signal to [Mr. DeFranca]
for him to put the hose down and get out of the way.
[Mr. DeFranca] was still holding the hose when the
concrete pump truck operator increased the pressure
on the pump. Due to the additional pressure on the
pump, the hose was thrown from side to side and hit
[Mr. DeFranca] in the head. Subsequently, [Mr.
DeFranca] fell off the wall he was standing on and
dropped down nine (9) feet into a basement. [Mr.
DeFranca] sustained multiple injuries as a result of
this incident.
[Mr. DeFranca] identified the concrete pump
truck that was owned by 5 Star Concrete Pumping,
LLC ([h]ereinafter “5 Star”) as the concrete pump
truck involved in his accident. 5 Star was a concrete
pumping service formed in 2007 by Mr. Franks and
Mrs. Franks. Mr. Franks owned fifty-one percent
(51%) and Mrs. Franks owned forty-nine percent
(49%). Prior to forming 5 Star to provide concrete
pump truck services, Mr. Franks owned and operated
concrete pump trucks through his ready-mix
concrete delivery business, [] Trans-Fleet[.] Mr. and
Mrs. Franks were the sole officers and executives of
both [] Trans-Fleet and 5 Star. [] Trans-Fleet and 5
Star shared a business address, employees, and
operated out of the same office space. When
customers called [] Trans-Fleet, they could order
concrete and a concrete pump truck all at once. The
concrete was provided by [] Trans-Fleet. [] Trans-
Fleet employees would provide a concrete pump
truck exclusively by 5 Star. Both businesses had
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separate invoicing systems, bank accounts, and tax
returns. Mr. Franks personally trained all 5 Star
concrete pump truck operators.
The [jury] [t]rial commenced on November 18,
2013 and concluded on November 25, 2013, when
the [j]ury returned a verdict in favor of [] Hildo F.
DeFranca, and Maria F. DeFranca, and against []
Trans-Fleet. The [j]ury found that 5 Star was an
agent of [] Trans-Fleet at the time of [Mr.
DeFranca’s] accident on March 22, 2010. The [j]ury
determined that 5 Star and [] Trans-Fleet were both
negligent and their negligence was the factual cause
of [Mr. DeFranca’s] injuries. The [j]ury attributed
50% of the liability to 5 Star and 50% to [] Trans-
Fleet. The [j]ury awarded [Mr.] DeFranca damages
in the amount of [t]wo [m]illion ($2,000,000.00)
[d]ollars and awarded [t]wo [h]undred and [f]ifty
[t]housand ($250,000.00) [d]ollars to [] Maria F.
DeFranca for her loss of consortium in connection to
the incident that occurred on March 22, 2010. The
[j]ury found Albino was not negligent. [Appellees]
settled their claims against Albino prior to counsels’
closing arguments.
[The DeFrancas] timely filed a [m]otion for
[d]elay [d]amages which [the trial] [c]ourt [g]ranted
in the amount of $63,590.62 to be added to the
$2,250,000 [j]ury [v]erdict in accordance with an
[o]rder dated June 6, 2014. [The DeFrancas] timely
filed a [p]ost-[t]rial [m]otion to [m]old the [v]erdict
which [the trial] [c]ourt [g]ranted as stated in an
[o]rder dated June 6, 2014. [The trial] [c]ourt
further [o]rdered that judgment be entered in the
amount of $2,313,590.62 in the [DeFrancas’] favor
and against [] Trans-Fleet to reflect its own
negligence and its liability for the negligence of 5
Star. [] Trans-Fleet timely filed a [m]otion for
[p]ost-[t]rial relief for [judgment notwithstanding the
verdict (JNOV) or] a [n]ew [t]rial which [the trial]
[c]ourt denied pursuant to an order dated June 6,
2014. [On June 18, 2014, Trans-Fleet filed a timely
notice of appeal.] On July 9, 2014, [the trial] [c]ourt
entered an order pursuant to Pa.R.[A].P. 1925(b)
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requiring [Trans-Fleet] to file a [c]oncise [s]tatement
of [e]rrors [c]omplained of on [a]ppeal. [] Trans-
Fleet timely filed its 1925(b) Statement[.]
Trial Court Opinion, 10/16/14, at 1-3.
On appeal, Trans-Fleet raises the following issues for our review.
1. Whether the trial court erred in
submitting the issue of vicarious liability of Trans-
Fleet Concrete, Inc. via an alleged agency
relationship with non-party 5 Star Concrete to the
jury beyond the statute of limitations when no non-
party agent had been properly identified throughout
the course of the case and no evidence of an agency
relationship between [A]ppellant and 5 Star was
offered by the DeFrancas?
2. Whether the jury’s verdict that Trans-
Fleet may be liable as the alleged principal of non-
party 5 Star is unsustainable, given that no evidence
was proffered to support a finding of negligence by 5
Star?
3. Whether the trial court committed
reversible error in excluding relevant, probative,
admissible evidence that the alleged vehicle in
question was not at the location of the incident, as
confirmed via Global Positioning System Records,
thereby prejudicing [A]ppellant at trial?
4. Whether the jury’s verdict that Trans-
Fleet may be liable for negligent training is
unsustainable, given that the DeFrancas proffered
nothing to suggest that Trans-Fleet held a legal duty
to train the employees of another company, and
there is no competent evidence in the record of
negligent training in any event?
Trans-Fleet’s Brief at 6-7.
Our standards of review of a trial court’s denial of post-trial motions
for JNOV and a new trial are as follows.
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An appellate court will reverse a trial court’s
grant or denial of a JNOV only when the appellate
court finds an abuse of discretion or an error of law.
Our scope of review with respect to whether
judgment n.o.v. is appropriate is plenary, as with
any review of questions of law.
In reviewing a motion for judgment
n.o.v., the evidence must be considered in the
light most favorable to the verdict winner, and
he must be given the benefit of every
reasonable inference of fact arising therefrom,
and any conflict in the evidence must be
resolved in his favor. Moreover, a judgment
n.o.v. should only be entered in a clear case
and any doubts must be resolved in favor of
the verdict winner. Further, a judge’s
appraisement of evidence is not to be based on
how he would have voted had he been a
member of the jury, but on the facts as they
come through the sieve of the jury’s
deliberations.
There are two bases upon which a
judgment n.o.v. can be entered: one, the
movant is entitled to judgment as a matter of
law, … and/or two, the evidence was such that
no two reasonable minds could disagree that
the outcome should have been rendered in
favor of the movant[.] With the first a court
reviews the record and concludes that even
with all factual inferences decided adverse to
the movant the law nonetheless requires a
verdict in his favor, whereas with the second
the court reviews the evidentiary record and
concludes that the evidence was such that a
verdict for the movant was beyond
peradventure.
Questions of credibility and conflicts in the
evidence are for the [fact-finder] to resolve and the
reviewing court should not reweigh the evidence. If
there is any basis upon which the jury could have
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properly made its award, the denial of the motion for
judgment n.o.v. must be affirmed.
Braun v. Wal–Mart Stores, Inc., 24 A.3d 875, 890-91 (Pa. Super. 2011)
(brackets in original; internal citations and quotation marks omitted),
affirmed, 106 A.3d 656 (Pa. 2014).
In reviewing a trial court’s denial of a motion for a
new trial, the standard of review for an appellate
court is as follows:
[I]t is well-established law that, absent a
clear abuse of discretion by the trial court,
appellate courts must not interfere with the
trial court’s authority to grant or deny a new
trial.
* * *
Thus, when analyzing a decision by a
trial court to grant or deny a new trial, the
proper standard of review, ultimately, is
whether the trial court abused its discretion.
Moreover, our review must be tailored to a well-
settled, two-part analysis:
We must review the court’s alleged
mistake and determine whether the court erred
and, if so, whether the error resulted in
prejudice necessitating a new trial. If the
alleged mistake concerned an error of law, we
will scrutinize for legal error. Once we
determine whether an error occurred, we must
then determine whether the trial court abused
its discretion in ruling on the request for a new
trial.
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ACE Am. Ins. Co. v. Underwriters at Lloyds and Cos., 939 A.2d 935,
939 (Pa. Super. 2007) (citations omitted), affirmed, 971 A.2d 1121 (Pa.
2009).
In its first issue on appeal, Trans-Fleet contends that the trial court
should not have submitted the issue of agency to the jury. The argument
section of Trans-Fleet’s brief on appeal presents six subissues purportedly
arising out of this issue. Trans-Fleet’s Brief at 15-46. As such, we address
each subissue in turn.
In its first three subissues, Trans-Fleet contends that the DeFrancas
did not properly plead that Trans-Fleet was liable under an agency theory.
Id. at 15-25. Specifically, Trans-Fleet argues that the DeFrancas did not
identify an agent by name in the complaint, which is not sufficient. Id. at
18-25. Because the pleadings were inadequate, Trans-Fleet asserts the trial
court should not have instructed the jury that it could find Trans-Fleet liable
for the acts or omissions of its agent. Id. at 15-18.
This Court has previously held that averments of unnamed agents read
in the context of the entire complaint are sufficient to put the defendant on
notice of the claims against it, and unless the defendant seeks specification,
it has to defend against those averments. Yocoub v. Lehigh Valley Med.
Assocs., P.C., 805 A.2d 579, 589-590 (Pa. Super. 2002), appeal denied,
825 A.2d 639 (Pa. 2003). In Yocoub, we reversed the trial court’s decision
to preclude the plaintiff from presenting evidence of an agency relationship
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between a hospital and its radiologists because the plaintiff did not
specifically identify the radiologists by name in its fourth amended
complaint. Id. at 590. We noted that the purpose of allegations in a
complaint is to put the defendant on notice of the claims that they will have
to defend. Id. at 588. To determine whether the claims provided sufficient
notice, we explained that the paragraphs of the complaint cannot be read in
isolation from each other, but must be read together in context. Id. at 589.
Applying these principles, we determined that the averment that the hospital
was liable for the acts and omissions of its unnamed agents, read together
with the allegations that the radiology department was negligent, was
sufficient to put the hospital on notice that it must defend against a claim of
agency. Id.
Further, we reasoned that because the hospital waited until the eve of
trial to contest the specificity of the allegations of agency instead of filing
preliminary objections requesting a more specific pleading or moving to
strike the allegations of the unspecified agents, “any objection to the
specificity of the complaint has been waived.” Id. at 590 (citations
omitted). Moreover, we noted that by the time the hospital first raised its
specificity challenge, depositions had been completed and the plaintiff’s
expert had filed his report, concluding that two radiologists, who were not
named as defendants, had been negligent, so it was apparent that the
plaintiff was pursuing an agency theory. Id.
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Herein, we conclude that the allegations in the complaint were
sufficient to put Trans-Fleet on notice that it had to defend against an
agency theory based on its relationship with 5 Star. The complaint pled a
straightforward negligence action against Trans-Fleet, Albino, Joao Albino,
JVL Concrete Co., Inc., and Silva Concrete, Inc. based on the injuries
sustained by Mr. DeFranca on March 22, 2010 at a specific construction site
while operating a cement pump truck hose that had become clogged. First
Amended Complaint, 5/7/12, at 1-5. The complaint also contained several
paragraphs asserting that Trans-Fleet was liable based on the negligence of
its agents. Id. at ¶¶ 9, 23, 27-31. The DeFrancas alleged the negligence of
Trans-Fleet and its agents, in part, as follows.
23. It is believed and, therefore averred, that the
Defendants, by and through their agents, servants,
workers and/or employees, were negligent including,
but not limited, to the following:
a) Failing to provide training and supervision …
to its workers and employees …;
b) Failing to … adequately and properly warn
and instruct the Plaintiff …;
…
d) Failing to properly educate, hire, train,
supervise and monitor its contractors,
subcontractors and employees with regard to
work place safety;
…
f) Failing to properly inspect the cement pump
truck, hose and equipment;
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g) Failing to properly maintain the cement
pump truck, hose and equipment;
h) Failing to properly operate the cement
truck, hose and equipment;
i) Failing to properly prepare, prime and
control the cement pump truck, hose,
equipment and load;
…
m) Defendants failed to take all reasonable and
necessary measures to protect the Plaintiff …
from dangerous conditions upon its premises,
i.e. negligent operation of the pump truck and
equipment and lack of fall protection ….
Id. at ¶ 23(a)-(b), (d), (f)-(i), (m) (emphasis added). Therefore, viewing
the complaint as a whole, we conclude that the allegations were sufficient to
put Trans-Fleet on notice that it had to defend against a claim that Mr.
DeFranca sustained injuries as a result of the negligence of Trans-Fleet’s
agents operating the cement pump truck on March 22, 2010 at the
construction site at 317 Chapman Drive, Perkasie, Pennsylvania.
Moreover, we conclude that Trans-Fleet waived its objection to the
specificity of the complaint because it did not file preliminary objections
seeking more specificity or moving to strike the allegations. See Yocoub,
supra at 590. Further, we note that the actions taken by Trans-Fleet
indicate that it had actual notice that it had to defend against the negligence
of 5 Star. For instance, in response to the complaint, Mrs. Franks executed
an affidavit of non-involvement denying that Trans-Fleet had any agents at
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the construction site. Affidavit of Non-Involvement, 8/13/12. On the same
day, Trans-Fleet filed an answer to the complaint, denying that its agents
were negligent. Trans-Fleet’s Answer, 8/13/12, at ¶¶ 9, 23, 27-31.
Similarly, the deposition of Mrs. Franks, one of the owners of Trans-Fleet
and 5 Star, contained a line of questioning about 5 Star’s potential
negligence. Plaintiff’s pretrial memorandum also alleged that Trans-Fleet
acted through its “agent and alter ego,” 5 Star. On August 13, 2013, Trans-
Fleet advised the DeFrancas that Mrs. Franks had GPS records that showed 5
Star did not have vehicle at the construction site on the day of the incident.
Similarly, at trial, Trans-Fleet attempted to defend against the allegations of
agency by demonstrating that 5 Star was not at the construction site and,
instead, the pump truck of TD Concrete injured Mr. DeFranca. The foregoing
examples demonstrate Trans-Fleet had actual notice, thus we conclude that
the trial court did not err or abuse its discretion when it found that “Trans-
Fleet should have known that the only possible agent that the [DeFrancas]
would be referring to was 5 Star.” Trial Court Opinion, 10/16/14, at 6.
Therefore, Trans-Fleet’s first three subissues are meritless and the issue of
agency was properly submitted to the jury.
Next, we conclude Trans-Fleet has waived its fourth and fifth subissues
to its first issue on appeal. In those subissues, Trans-Fleet asserts that the
proofs at trial varied from the pleadings, and the late addition of the agency
theory constituted an improper de facto amendment of the pleadings.
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Trans-Fleet’s Brief at 25-37. Neither of these issues were included in Trans-
Fleet’s Rule 1925(b) statement nor are reasonably inferable from any of the
issues included therein. See Trans-Fleet’s Concise Statement of Errors
Complained of on Appeal, 7/30/14. Hence, we deem the issues waived.
“Any issues not raised in a Rule 1925(b) statement will be deemed waived.”
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).
Our Supreme Court intended the holding in
[Commonwealth v. Lord, 719 A.2d 306 (Pa.
1998)] to operate as a bright-line rule, such that
“failure to comply with the minimal requirements of
Pa.R.A.P. 1925(b) will result in automatic waiver of
the issues raised.” Commonwealth v. Schofield,
585 Pa. 389, 888 A.2d 771, 774 (2005) (emphasis
added); see also [Commonwealth v. Castillo, 888
A.2d 775, 780 (2005)]. Given the automatic nature
of this type of waiver, we are required to address the
issue once it comes to our attention.
Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d
222, 223-224 (Pa. Super. 2014) (en banc) (emphasis in original).1
In its sixth subissue to its first issue on appeal, Trans-Fleet contends
that the DeFrancas did not introduce any evidence to support an agency
relationship between Trans-Fleet and 5 Star. Trans-Fleet’s Brief at 38-42.
Trans-Fleet further argues that the trial court de facto pierced the corporate
____________________________________________
1
Even if these issues were not waived, we would conclude that the proofs
did not vary from the pleadings because, as discussed above, the DeFrancas’
complaint sufficiently pled a theory of agency. For the same reason, we
would conclude the trial court did not permit a de facto amendment of the
complaint.
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veil when it permitted Trans-Fleet to be held liable for the acts of a separate
corporate entity. Id. at 42-46.
This Court has defined an agency relationship as follows.
An agency relationship may be created by any of the
following: (1) express authority, (2) implied
authority, (3) apparent authority, and/or (4)
authority by estoppel. Express authority exists where
the principal deliberately and specifically grants
authority to the agent as to certain matters. Implied
authority exists in situations where the agent's
actions are “proper, usual and necessary” to carry
out express agency. Apparent agency exists where
the principal, by word or conduct, causes people with
whom the alleged agent deals to believe that the
principal has granted the agent authority to act.
Authority by estoppel occurs when the principal fails
to take reasonable steps to disavow the third party
of their belief that the purported agent was
authorized to act on behalf of the principal.
…
The basic elements of agency are the
manifestation by the principal that the agent
shall act for him, the agent's acceptance of the
undertaking and the understanding of the
parties that the principal is to be in control of
the undertaking. The creation of an agency
relationship requires no special formalities.
The existence of an agency relationship is a
question of fact. The party asserting the
existence of an agency relationship bears the
burden of proving it by a fair preponderance of
the evidence. In establishing agency, one
need not furnish direct proof of specific
authority, provided it can be inferred from the
facts that at least an implied intention to
create the relationship of principal and agent
existed. However, we do not assume agency
by a mere showing that one person does an
act for another.
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B & L Asphalt Industries, Inc. v. Fusco, 753 A.2d
264, 269 (Pa. Super. 2000).
Walton v. Johnson, 66 A.3d 782, 786-787 (Pa. Super. 2013) (footnote,
some citations, and internal quotation marks omitted).
The trial court aptly analyzed this issue in its Rule 1925(a) opinion.
Here, the facts that were presented to the
[j]ury were in dispute, thereby, [the] [t]rial [c]ourt
did not err in allowing the [j]ury to properly
determine whether an agency relationship existed
between [] Trans-Fleet and 5 Star. [] Trans-Fleet
presented the testimony of Mr. and Mrs. Franks who
were the sole officers and executives of [] Trans-
Fleet and 5 Star. Mrs. Franks testified that [] Trans-
Fleet delivered ready-mix concrete and 5 Star was a
concrete pumping service. Mrs. Franks testified that
both companies had separate invoicing systems,
bank accounts, tax returns, pricing, telephone
numbers, and websites. On cross examination, Mrs.
Franks testified that the business address for []
Trans-Fleet and 5 Star was the same and they
operated out of the same office. There was one sign
outside of that business address that advertised the
businesses of both [] Trans-Fleet and 5 Star. The
employees for [] Trans-Fleet were the same
employees that generated invoices and answered the
phones for 5 Star. In March of 2010, when
customers called [] Trans-Fleet, they could order
concrete and a concrete pump truck all with one
phone call. The concrete was provided by [] Trans-
Fleet. Then, [] Trans-Fleet’s employees provided a
concrete pump truck exclusively from 5 Star. As the
[p]resident of [] Trans-Fleet, Mr. Franks provided the
only training that was required to operate 5 Star’s
concrete pump trucks. Mr. John Leal, the owner of
Albino, testified that when he hired [] Trans-Fleet in
2010 to deliver concrete and a concrete pump truck,
he thought that [] Trans-Fleet supplied both the
concrete and the concrete pumps. As the evidence
demonstrated at [t]rial and was briefly summarized
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above, there was sufficient evidence presented which
would lead the [j]ury to determine an agency
relationship existed. Since there was a factual
dispute regarding the agency relationship between []
Trans-Fleet and 5 Star, the question was properly
submitted to the [j]ury.
Trial Court Opinion, 10/16/14, at 8-9 (citations omitted). We conclude that
the trial court did not commit an error of law or an abuse of discretion, and
this portion of Trans-Fleet’s sixth subissue lacks merit.
Further, Trans-Fleet contends that the trial court’s actions amounted
to a de facto piercing of the corporate veil under the “single entity” theory.
Trans-Fleet’s Brief at 42, 44. However, Trans-Fleet did not raise this issue in
its Rule 1925(b) statement and it is not reasonably inferable from any of the
issues included therein. See Trans-Fleet’s Concise Statement of Errors
Complained of on Appeal, 7/30/14. Accordingly, we deem this portion of
Trans-Fleet’s sixth subissue waived. See Greater Erie, supra.In its second issue on appeal, Trans-Fleet argues that the verdict was
against the weight of the evidence because the DeFrancas did not introduce
evidence that a 5 Star pump truck was at the construction site on the day
Mr. DeFranca was injured. Trans-Fleet’s Brief at 46-49. Specifically, Trans-
Fleet submits that Mr. DeFranca’s testimony did not reference 5 Star by
name and Trans-Fleet claims that DeFranca’s description of the color scheme
of the pump truck involved in the incident did not match the color scheme of
5 Star’s pump trucks. We begin by noting the standard that guides our
review of claims that a verdict is against the weight of the evidence.
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Appellate review of a weight claim is a review
of the [trial court’s] exercise of discretion, not
of the underlying question of whether the
verdict is against the weight of the evidence.
Because the trial judge has had the
opportunity to hear and see the evidence
presented, an appellate court will give the
gravest consideration to the findings and
reasons advanced by the trial judge when
reviewing a trial court’s determination that the
verdict is against the weight of the evidence.
One of the least assailable reasons for granting
or denying a new trial is the lower court’s
conviction that the verdict was or was not
against the weight of the evidence and that a
new trial should be granted in the interest of
justice.
The factfinder is free to believe all, part, or none of
the evidence and to determine the credibility of the
witnesses. The trial court may award a judgment
notwithstanding the verdict or a new trial only when
the jury's verdict is so contrary to the evidence as to
shock one's sense of justice. In determining whether
this standard has been met, appellate review is
limited to whether the trial judge's discretion was
properly exercised, and relief will only be granted
where the facts and inferences of record disclose a
palpable abuse of discretion. When a fact finder's
verdict is so opposed to the demonstrative facts that
looking at the verdict, the mind stands baffled, the
intellect searches in vain for cause and effect, and
reason rebels against the bizarre and erratic
conclusion, it can be said that the verdict is
shocking.
Haan v. Wells, 103 A.3d 60, 69-70 (Pa. Super. 2014) (citations and
internal quotation marks omitted; brackets in original).
In the trial court’s opinion, it detailed the evidence the DeFrancas
presented at trial that supported the jury’s verdict as follows.
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During the trial, ample evidence was presented that
the 5 Star concrete pump truck was the truck that
caused [Mr. DeFranca’s] injury and that a concrete
delivery truck owned by [] Trans-Fleet was at the
worksite at the time of the injury. [Mr. DeFranca]
testified that on the day of his fall[,] the pump truck
was yellow. He also identified the 5 Star concrete
pump truck in a photograph that was marked as
Exhibit P-4 as a true and accurate depiction of the
pump truck involved in his accident. On cross
examination, [Mr. DeFranca] clarified that when he
was asked the color of the pump truck in which he
replied yellow, he was referring to the boom which is
part of the pump truck that he was holding onto.
Mrs. Franks, the Secretary and Treasurer of Trans-
Fleet and the []49%[] owner of 5 Star, testified that
in March of 2010, 5 Star’s pump trucks were white
with a yellow and green stripe and a yellow boom.
[The DeFrancas] also read to the [j]ury from the
transcript of the deposition testimony of Mr. John
Leal, the President of Albino Construction. Mr. Leal
was asked by [] Trans-Fleet whether he had any
specific recollection of working with Trans-Fleet on
the job where [Mr. DeFranca] was injured. Mr. Leal
responded that he [was not] positive as far as Trans-
Fleet working on that job site but probably. The
testimony of [Mr. DeFranca], Mrs. Franks, and Mr.
Leal that was presented to the [j]ury was sufficient
evidence that could reasonably lead a [j]ury to
conclude that Trans-Fleet and/or 5 Star’s vehicles
and operators were involved in [Mr. DeFranca’s]
accident on March 22, 2010.
Trial Court Opinion, 10/16/14, at 11-12 (citations omitted).
We have reviewed the record and the trial court’s consideration of the
same, and we discern no abuse of discretion in the trial court’s rejection of
Trans-Fleet’s weight of the evidence claim. As the trial court noted, there
was ample evidence that Mr. DeFranca was injured while operating a pump
connected to a 5 Star pump truck. Id. Specifically, Mr. DeFranca testified
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that the pump truck pictured in exhibit P-4 was a true and accurate depiction
of the pump truck involved in his accident. See id.; N.T., 11/19/13, at 27.2
Similarly, on cross-examination, Mr. DeFranca clarified that when he
identified the truck as yellow, he was referring to the boom on the truck,
which was the part of the truck that he was in direct contact with. N.T.,
11/19/13, at 44. Mrs. Franks’ testimony confirmed that 5 Star’s pump
trucks had a yellow boom. N.T., 11/20/13, at 80, 86. The factfinder was
free to weigh this evidence and conclude it was credible, and to reject Trans-
Fleet’s argument to the contrary. Having reviewed the record, we conclude
the record supported this determination. Consequently, the trial court did
not abuse its discretion in refusing to grant JNOV based on the weight of the
evidence, and Trans-Fleet’s second issue on appeal is meritless. See Haan,
supra.
In its third issue on appeal, Trans-Fleet contends that the trial court
improperly excluded, as hearsay, GPS evidence that allegedly indicated that
a 5 Star vehicle was not in the vicinity of the construction site on March 22,
____________________________________________
2
We note that the trial exhibits are not part of the certified record, and our
attempt to obtain them from the trial court was unsuccessful. The
DeFrancas’ brief represents that the original exhibit P-4 “cannot be located,”
but the DeFrancas supplemented the reproduced record with a photograph
that they claim is identical to the one that was submitted as P-4. The trial
court’s description of exhibit P-4 in its 1925(a) opinion confirms the contents
of exhibit P-4. Accordingly, we address the merits of this issue and decline
to find waiver.
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2010. Trans-Fleet’s Brief at 50-57. We review trial courts evidentiary
rulings according to the following standard.
When we review a trial court ruling on admission of
evidence, we must acknowledge that decisions on
admissibility are within the sound discretion of the
trial court and will not be overturned absent an
abuse of discretion or misapplication of law. An
abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised
is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will, as shown by the evidence
or the record, discretion is abused.
Commonwealth Fin. Sys., Inc. v. Smith, 15 A.3d 492, 496 (Pa. Super.
2011) (citations and internal quotation marks omitted).
Specifically, 5 Star argues that the GPS evidence was admissible as a
record regularly kept in the course of its business. Trans-Fleet’s Brief at 50.
We note that Pennsylvania Rule of Evidence 803(6) provides a record of a
regularly conducted business activity will not be excluded by the rule against
hearsay if all the following conditions are met.
Rule 803. Exceptions to the Rule Against
Hearsay--Regardless of Whether the Declarant
Is Available as a Witness
…
(6) Records of a Regularly Conducted Activity.
A record (which includes a memorandum, report, or
data compilation in any form) of an act, event or
condition if,
(A) the record was made at or near the time by--or
from information transmitted by--someone with
knowledge;
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(B) the record was kept in the course of a regularly
conducted activity of a “business”, which term
includes business, institution, association,
profession, occupation, and calling of every kind,
whether or not conducted for profit;
(C) making the record was a regular practice of that
activity;
(D) all these conditions are shown by the testimony
of the custodian or another qualified witness, or by a
certification that complies with Rule 902(11) or (12)
or with a statute permitting certification; and
(E) neither the source of information nor other
circumstances indicate a lack of trustworthiness.
Pa.R.E. 803(6)(A)-(E).
5 Star asserts that Mrs. Franks, as the user and keeper of the records,
was the only witness necessary to establish the trustworthiness of the
records. Id. at 54. The trial court, however, disagreed and explained that
Mrs. Franks could not do so because she was not the party that actually
made the GPS records as follows.
During oral argument at trial, [] Trans-Fleet
argued that the GPS data records were business
records of Trans-Fleet because they were regularly
kept by Mrs. Franks and she had personal knowledge
of them. The GPS data records would have been
introduced into evidence through the testimony of
Mrs. Franks. Mrs. Franks would have testified that
the GPS data records were maintained on Trans-
Fleet’s work computer, updated every day, and
tracked where employees traveled each day and
what truck and/or equipment was used. Defendant
Trans-Fleet stated that Mrs. Franks had personal
knowledge of the GPS data records because she had
the Five Cubits Track It system open on her office
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computer every day and used the printout of the
information created by that system. Mrs. Franks did
not create the GPS data records that [] Trans-Fleet
sought to introduce. Instead, [Mrs. Franks] used the
GPS data that was created by other companies. The
GPS data records at issue contained GPS coordinates
that were taken from a company that operated the
satellite, who them forwarded the information to the
Five Cubits Track It system which created the
records that Mrs. Franks accessed on her Trans-Fleet
computer to track the location of her employees,
trucks, and equipment. [The] [t]rial [c]ourt found
that Mrs. Franks did not have the requisite
knowledge to establish the trustworthiness needed
for GPS data records to be admitted into evidence as
a business record under Pa.[R.E.] 803(6).
[]Trans-Fleet did not present a witness from
the company that operated the GPS satellite or a
witness from Five Cubits Track It system[, the
company that created the GPS records,] with
knowledge that could be sufficient evidence for the
trustworthiness of the GPS data reords. Thus, the
[DeFrancas] would have been precluded from cross
examining the creator of the data about how the GPS
tracking units were calibrated, whether the satellites
were tested that day to determine if they were
functional in the area where the incident occurred on
March 22, 2010. Additionally, the [DeFrancas] would
have been precluded from inquiring into how Five
Cubits Track It gathered the information, created the
GPS data records used by Mrs. Franks, and the
reliability and accuracy of those GPS data records.
Therefore, [the] [t]rial [c]ourt [] excluded the GPS
data records as they were inadmissible hearsay due
to the lack of trustworthiness created by the absence
of a witness with knowledge as to the creation and
accuracy of these records.
Trial Court Opinion, 10/16/14, at 12-13 (citations omitted).
After careful review, we conclude that the trial court did not abuse its
discretion or commit an error of law. The record supports the trial court’s
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conclusion that Mrs. Franks was not the proper witness to authenticate the
GPS records and establish their trustworthiness because she was not the one
who created them. Instead, Five Cubits Track It, a third party company,
created the records based on information it received from a GPS satellite
company. Mrs. Franks merely viewed the records after Five Cubits Track It
created them. The trial court was in the best position to determine the
trustworthiness of the evidence, and we will not substitute our judgment.
We conclude that the trial court did not abuse its discretion or err as a
matter of law in excluding the GPS records, based on its concerns about the
authentication and trustworthiness of the evidence. See Smith, supra(explaining “regardless of a ‘nationwide trend’ and ‘clear federal precedent’
for allowing the introduction of business records consisting of documents
generated by third parties, the Pennsylvania Supreme Court has not seen fit
to adopt the rule of incorporation[]”).
Moreover, prior to trial, Trans-Fleet’s counsel agreed that the GPS
records were not admissible in the absence of testimony from a Five Cubits
Track It representative. N.T., 11/15/13, at 37 (conceding “If I can’t get [a
representative of Five Cubits Track It] here … I don’t disagree that I can’t
authenticate the [GPS] records[]”). The trial court then stated that it would
revisit the issue if Trans-Fleet presented such a representative. Id. Trans-
Fleet, however, did not obtain a Five Cubits Track It representative to testify
in its case or attempt to introduce the GPS records at trial. Accordingly, we
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conclude that Trans-Fleet’s third issue on appeal lacks merit. See Smith,
supra.In its fourth issue on appeal, Trans-Fleet argues that the trial court
erred by submitting the issue of negligent training to the jury. Trans-Fleet’s
Brief at 57-60. Specifically, Trans-Fleet maintains that it did not have a duty
to train 5 Star’s employees because the two companies were separate
entities. Id. at 57-58. Further, Trans-Fleet submits that the evidence
presented showed that the pump truck operator actually was trained
properly because he correctly unclogged the hose twice before the accident.
Id. at 58. The trial court explained that the following evidence supported
submitting the issue to the jury.
The [DeFrancas] presented the testimony of Mr.
Thomas Cocchiola, P.E., an expert in the fields of
mechanical and safety engineering. Mr. Cocchiola
testified that the American Concrete Pumping
Association manuals which address safety
procedures regarding clogs and hose whipping states
that the pump operator should stop the pump, get
the people out of the way, and try to jog it back and
forth to try and release or reduce or remove the
clog, but ultimately shut it down, dissipate pressure,
and then disassemble the lines and clean them out.
The testimony of [Mr. DeFranca] indicated that the
pump truck operator did not signal [Mr. DeFranca] to
get out [of] the way and increased the pressure
which caused the hose whipping. Mr. Cocchiola
testified to a reasonable degree of mechanical and
safety engineering that the pump truck operator did
not meet the standard of care as described by the
American Concrete Pumping Association manuals.
He further testified that the concrete pump truck
operator did not follow what basically is the industry
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custom and practice with respect to operating the
pump and attending to a clog.
Mr. Franks, the owner of Trans-Fleet and the
[]51%[] owner of 5 Star, testified that as the
president of Trans-Fleet he had been involved with
providing training to operators of concrete pump
trucks and continued to do so after 5 Star was
created in 2007. Mr. Franks did not require the
pump truck operators that worked for him to be
tested on the owner’s manuals before they began to
operate the pump. Mr. Franks required them to go
through training with him before they operated the
pump on their own. A jury could reasonably
conclude that Trans-Fleet had a duty to train the
pump truck operators based on Mr. Franks’
testimony that the only training required to work at
5 Star is with him. A jury could also reasonably
conclude that Trans-Fleet’s training was negligent
because the [DeFrancas’] mechanical and safety
engineering expert, Mr. Cocchiola, testified that the
pump truck operator’s actions were below the
standard of care. Based on the testimony of Mr.
Franks and Mr. Cocchiola, [the] [t]rial [c]ourt did not
err in allowing the [j]ury to consider whether there
was negligent training by Trans-Fleet.
Trial Court Opinion, 10/16/14, at 14-15 (footnote and citations omitted).
After carefully reviewing the record and the trial court’s opinion, we
conclude that the trial court’s Rule 1925(a) opinion fully sets forth
Appellant’s claims, identifies the proper standard of review, discusses the
evidence presented at trial, and explains the basis for its conclusion that
there was sufficient evidence on the issue of negligent training to submit it
to the jury. We conclude that the well-reasoned opinion of Judge Paul P.
Panepinto is in agreement with our own views. Accordingly, we conclude the
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trial court did not abuse its discretion or err as a matter of law in submitting
the issue of negligent training to the jury.
Based on the foregoing, we conclude all of Trans-Fleet’s issues on
appeal are waived or devoid of merit. The trial court did not commit a clear
abuse of discretion or error of law that would warrant JNOV or a new trial.
See Braun, supra; ACE Am. Ins. Co., supra. Therefore, we affirm the
June 17, 2014 judgment.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2016
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